Mireles, Christian Ramiro v. State

_____No.
Allirm and Opinion Filed January l8 2013.
In The
court of 1ppeat
jfftfj ttrtct of 1rcxa at atta
05- 12-00040-CR
CHRISTI AN RAMIRO MIRELES, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 363rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-50552-W
OPINION
Before Justices Lang-Miers, Myers. and Richter’
Opinion by Justice Lang-Miers
Appellant Christian Ramiro Mireles appeals his conviction for murder and sentence of
life imprisonment. He raises five issues on appeal: (I) the evidence is insufficient to support the
jury’s rejection of his claim of sudden passion: (2) the trial court erred by refusing to instruct the
jury to disregard improper jury argument: (3) the trial court abused its discretion by not declaring
a mistrial; (4) the trial court abused its discretion by not giving a curative instruction; and (5) the
trial court abused its discretion by not granting him a continuance. We affirm the trial court’s
judgment.
The 1-lonorable Marlin E. Richter. Retired Justice. Filth District Court of Appeals at Dallas, sitting by assignment.
F’AUTUAI. Ni PkOCEDURAL HACKGROUN
Appellant was convicted ol murdeiin his girl friend’s brother. Javier Guerrero. Javier
was l years old and lived with his mother, Marylou GuelTero, and her boyfriend of 15 years,
Luis Garcia. Appellant and Javier’s sister. Eleucteria (lcrrv) (iuerrero, lived together with their
child at appellant’s mothers house. One Saturday in January 2009, Terry was at her mother’s
house doing laundry and helping prepare dinner. Appellant arrived around 6 pm with his cousin
Tony. who was about 13 or 15 years old. What happened after appellant arrived at the house
varies depending on the witness. We will relate the various versions.
Luis’s version
Luis testified that appellant came over to the house with a cousin or nephew. Appellant
invited Luis outside for a drink. Luis declined. Luis thought appellant was drunk, and his
behavior was different from normal in his “manner of speech and his walk.” Javier called to have
someone come get him, and Luis, appellant, and Tony went to pick up Javier in Terrys car. Luis
and appellant chatted “normally” on the ride over. I—Ic said appellant was smoking marijuana in
the car. Luis did not notice anything unusual about Javier’ s behavior when he got into the car.
After they picked Javier up, appellant started “assaulting”—”saying bad words to” Javier. Luis
did not know why appellant said those “swear words’ to Javier because Javier had not said
anything to appellant to make him angry. Javier did not respond to appellant. Appellant asked
Luis to stop the car in the middle of the freeway so he and Javier could fight: Luis refused and
told them they could fight when they got home. Luis (lid not think appellant and Javier would
really fight.
When they got home. Javier went to his room and appellant and his cousin stayed
outside. Luis told Marylou about the “fight.” Javier changed clothes and went outside. Luis later
heard appellant’s truck leaving. Alier dinner, Luis went to the store, and Terry called him and
told him that something had happened to iavier. I-Ic went to the park where he saw a body being
loaded into an ambulance, He and Marylou went to the hospital. At some point they were asked
to identify a picture ol a body. and it was Javier.
N-larylou ‘s version
Marylou testified that she spent the day with Terry and her granddaughters .Appellant
and Tony came over around 6 pm. Javier called for a ride home. She said she was concerned
when Javier called because she and Luis had dropped Javier off at Timberlawn, a mental
hospital, the night before because he said he needed “some help” and “counseling.. She said she
had taken Javier to Timberlawn before. lie was taking medication br depression and he was
bipolar. Javier told her the hospital did not admit him.
When Luis. Javier, appellant, and Tony got home. Javier went inside and changed
clothes. Marylou told the police that as Javier was leaving, he told her that appellant “wanted to
fight him. but he (lid not want to fight and that he was going to go for a walk in the park to cool
oltI.I A couple of minutes after Javier walked out, appellant came inside and went to the
restroom. He came out with his gun and said, “I’m going to kill the bitch ass nigger” and went
hack outside and sat on his truck. Marylou testified that she did not know what appellant was
talking about at the time “because he was always talking. He’s always talking his crap.” But she
told the police that she thought appellant was referring to Javier because “he always called
IJavierl nigger.” Meainvhile. Javier came hack inside for a bottle of water and left again. She did
not see anything unusual in Javier’s behavior—”he was real calm.” He acted “normal, just like
he always does.” Appellant and Javier did not talk to each other.
3
About two minutes after Javier left the second time, appellant and Tony drove off in
appellaiit s truck. Appellant stopped at the stop sign right down 1mm the house and stayed there
br about tell minutes. She said that was unusual she had never seen appellant do that hebore.
Later she heard an ambulance go by and told Terry to follow it and find out what happened. She
said she “had a strange teeling” it was Javier. When lerry tOl(1 them Javier was hurt, she and
Luis went to the hospital.
Terry’s version
Terry testified that she was doing laundry at her mothers house and helping her 1110111cr
prepare dinner. Appellant and his cousin Tony came over and were “hanging out, outside
drinking, smoking marijuana, and listening to music, Appellant’s friend Chuy Caine over. Terry
went outside, and appellant told her to go back inside. She said she noticed that appellant
“looked kind of weird. His eyes were really glossy.” She said she “had never seen him that crazy
that day.” She said appellant did not act like he normally did when he was smoking marijuana.
She went back inside.
Terry’s mother got a call from Javier who said he needed a ride home. Luis, appellant,
and Tony went to pick up Javier. When they got back, Javier went to his room, Luis talked to
Marylou. and appellant and Tony stayed outside in appellant’s truck. Appellant came inside and
went to the restroom and then went back outside. She ftllowed him and asked him what was
wrong because she “had never seen him when his eyes were glossy” and “wide open.” She said
he “looked kinda mad, but I guess that’s normally how he looks . . . .“ Javier walked by them as
he was leaving but did not say anything. Appellant seemed upset but kept telling her that nothing
was wrong. The last thing appellant told her was that her brother “never liked me ever since I got
with you.” TeiTy testified that Javier “always thought that [appellant) used to beat me up all the
4
time.” Appellant told Terry he was going home and left She said she did not hear appellant
threaten to kill Javier or she would have done something about it.
About ten or fifteen minutes after appellant drove off from the stop sign, she heard an
ambulance and police going down the street. She followed them to Umphress Park. She
recognized her brother on the basketball court. The police described a truck and she thought it
was appellant’s truck. She called appellant. She met him at his mother’s house. She asked
appellant where his gun was located and he said, “I have it. 1 have it.” She said appellant
nonnally carried a gun in his waistband and it would be unusual for him to be without it. When
they got inside the house, Terry saw that appellant’s face was “beat up.” He had a black eye and
a busted or swollen lip. She did not see any other injuries on him or bleeding anywhere else.
When she saw those injuries, she knew appellant “had did something because he’s the type, he
don’t like to lose a fight He likes to win every fight.” She said he would “want revenge” if he
lost a fight.
Appellant told Terry that he had fought with Javier but that an Impala came by “and
started drive-by shooting. just start shooting at them.” She did not believe him. Terry testified
that appellant’s mother told him to take a shower “so they could hide the evidence.” Terry called
the police from appellant’s house and told them she thought appellant shot her brother. Then she
left for the hospital.
The eyewItnesses’ versIon
Several people witnessed the fight and testified at appellant’s trial. Some of them had
been playing soccer at the park and saw the fight some had just finished playing basketball, saw
the men fighting and decided to drive around the park; and one lived across the street from the
park. The eyewitnesses said they saw two men fighting a tall one and a short one, while a third
5
man, who was even shorter and “a little fttt” or heavy, stood by watching. They saw the tall man
knock the short man to the eround. The tall man looked like he did not want to fiiht anymore.
Ihen the short man uot up and eot a un from the heavy man who was watching. At that point.
the tall man was not coming after the short man. The short man shot the tall man about nine or
ten times, and the tall man fell to the ground. [he short man and the heavy man walked away
hom the basketball court up the hill. and the tall man sat up. l’hen the %hort man came back to
the basketball court and hit the tall man in the head more than once with something. Two of the
witnesses thought the short man hit the tall man in the head with the gun. The short man and the
heavy man left again. The eyewitnesses who had been driving around the park stopped their car
and went to help the tall man. All the eyewitnesses told the police what they saw. The eyewitness
who lived across the street from the park identified appellant as the man he saw hitting the man
lying on the basketball court,
Other evidence
The autopsy report showed that Javier sustained nine gunshot wounds, eleven sharp force
injuries, and some blunt force injuries, lie died from multiple gunshot wounds. The toxicology
report showed that Javier had methamphetamine. metabolites of heroin (codeine, morphine, 6-
monacetylmorphine). an antidepressant, and an antiseizure medicine in his urine. The medical
examiner testified that Javier could have received the antiseizure medicine at the hospital. He
also said the amount of drugs was not substantial and because the drugs were in the victim’s
urine, not his blood, “the majority of it had already metabolized and was finished causing — being
active in the blood so that it would have some effectl.J”
The eyesOtnesses did not know anyone by name. They generally referred to the indiOduals as the “tall one. he “short one.” and the heavy
one. The parties appear to agree that Javier, at 5 1’ according to the autopsy report, was the all one; appellant was the short one at 54”; and
Tony was the heavy one.
6
Alter the State rested its ease in chief, appellant changed his plea to guilty. The trial court
instructed the jury to tind appellant guilty. During the punishment phase, the State preseifled
evidence that appellant is a tol lower of Santisima Muerte. or Santa Muerte. which is a religion.
or cult, depicted by a skeletal figure resembling the “grim reaper” and associated with drug
traffickers and gn1gs. It presented this evidence through the expert testimony of Leo Pena. an
agent in the Intelligence and Counterlerrorism Division of the Texas Department of Public
Safety. Agent Pena testified that he learned about “the Santisima” as an undercover agent and in
investigating criminal activity with the [)PS. lie said the Santisima is “like a deity.” a “religion,”
a “cult.” that is a “Ic Iross between Mesoamerican and — and the Catholic culture” but “is not
sanctioned by the Catholic church,” He said that in his experience about ninety percent of drug
traffickers are associated with the Santisima. 1-Ic explained that “lilt’s suhjective as to why they
worship. Some may worship br — let’s say, the children are sick and they feel if they worship
Santa Muerte, favors will be given, miracles. There’s different reasons, some for protection,
some br love, prosperity. He said drug cartel members put the picture of Santa Muerte on kilos
of cocaine to protect it.
Appellant’s version
In mitigation of punishment, appellant testified that he killed Javier under the immediate
influence of sudden passion arising from an adequate cause. Appellant testified that he, Luis, and
Tony were in the yard at Marylou’s house drinking beer. He had called a friend to meet him at
the house with “some powder” because Luis and Marylou “both do it together.” They were
drinking beer and “doing some powder” when Terry came out and said they needed to go pick up
Javier. He, Luis, and Tony left in Terry’s car to get Javier. When they got to the gas station to
pick up Javier, Javier saw them and “walked toward the back with some prostitute that was
7
there.” While they waed br Javier, two different police ol cers drove by. Appellant got
“paranoid because he had S2() worth ol marijuana on him, Luis had “powder” on him, they both
had a beer, and appellant’s gun, which he always carried with him, was in the center console of
Terrys car.
When Javier finally got in the car, appellant said Javier’s coal smelled “weird.” He told
Javier, “damn, bro. you took a long time, you know, the cops passed by. I thought they were
going to roll us.” Javier replied. “who the f— told you to come in the first place.” Appellant said
“that got me started, You know, it got me mad because we were actually went to save him
from getting into trouhie. And we actually stopped we were fixing to party and Javier I stopped
us from doing what we were going to do. And he started talking you know, cussing me out and
we got into iti . “
Appellant said Javier “started it.” He said Javier wanted to fight, so appellant
asked Luis to pull the car over, but Luis refused.
When they got to the house, appellant gave his gun to Tony and told him to heat up the
truck. Appellant waited outside for a while. Javier left, then appellant went inside and told Terry
and Marylou that he was going home and was not staying for dinner. He said Terry asked what
was wrong with him because he “had an attitude.” He told her that he and Javier had gotten into
an argument and that “he was just ignoring [Javierl.” He said he planned to “smoke a blunt” with
Javier the next day and talk to him about the way Javier treated him in the car.
Appellant and Tony then drove off in appellant’s truck. When appellant got to the corner,
he saw Javier “throwing his hands up and I roll my window down ... He’s like, come on, let’s
fight right quick.” Appellant said, “We quash on it. You know, forget about it — just fight and
forget about it. So then I’m like, come on then. And jiavierj he didn’t want to fight right there
8
it the — at the corner, lie he wanted to go light at the park. so I pulled up to the park.”
Appellant “broke down the blunt” of marijuana while he was waiting on Javier to get to the park.
When appellant saw Javier walking up. he got out ol’ the truck to fight Javier. Javier
wanted to go to the basketball court, so they walked down to the basketball court and started
fighting. Appellant said he left his truck on and left Tony in the truck. Appellant testified that by
lighting Javier. he was telling Javier to “you know, get over it, you know, don’t be disrespecting.
you know. Like have respect for me, you know, I’m with your sister. Plus, he would always
smoke with me.” Appellant said that at this point he was “already calm calmed down. I Hel
wasn’t really mad about it, but since I guess since [Javierj was on that dope, he still had it in him.
Iiavierl wanted to get his anger out.” He said Javier “was acting too — too crazy, too wild.”
Javier knocked appellant on the ground a couple of times. Appellant saw “something
shining” in Javier’s hand and Javier “didn’t let me get up no more.” Javier “was attacking”
appellant while appellant was lying on the basketball court, so appellant “pulled out the gun to
back him off of me so I could get up.” Appellant said he “pulled out the gun to try to scare him
off, just so I can get up. And he looked at me like — you know, like you trying to get the gun -
snatch the gun out of my hands.” Javier tried to take the gun away from appellant, so appellant
said he “pulled the trigger about — I don’t recall if it was three or four shots, hut I only shot about
three or four shots and I stopped. And he still kept coming at me. So I shot about another four or
five shots.” He recalled that he fired the gun “about nine -- I’m not sure if it was eight or nine,
something like that.” By that time, appellant “was pretty mad . . . because I seen that he was
trying to take my life away when I was on the floor.”
Appellant said “everything happened so fast and I was scared[.j” He testified that he shot
Javier because he “was defending himself.” After he shot Javier, he “power walked” to his truck
9
and left. [Ic denied walking hack to Javier and heating him as he lay on the basketball court, lie
said he “had about a thousand things running through Ihisi head at that time” and if he had been
thinkini.!. he would have sta ed and called the police. He said the first thing he thought about was
that he needed to get home and tell his morn, He also said the first thing that came to his head
was that he needed to iet a lawyer. lie went to his mothers house, took a shower, went to a
friend’s house where he hid his truck, and fled to Levelland, Texas, to a cousin’s house until he
could hire a lawyer.
On cross-examination, appellant admitted to the jury that he got a tattoo of a gun on his
waist while he was in jail, lie said. “Ain’t got nothing else to do. That’s the way we do our time
in here.” He said he “thought it looked nicel,j” He was in “lockup” for ten days as a consequence
of getting the tattoo. After the ten-day period expired, which was during the trial, the guards
moved appellant to a twenty-inmate tank. One of the inmates in that tank attacked appellant.
Appellant came to court the next day with three stitches above his right eye and a swollen nose.
His lawyer orally moved for a continuance. The trial court denied it. The trial court gave
appellant the option of staying in the courtroom or listening to the trial in the holdover cell.
Appellant chose to stay in the courtroom and explain his injuries to the jury.
Other evidence
Appellant called several character witnesses to testify on his behalf. His sister testified
that appellant “is a very short man” and that he has ‘been picked on during his life because of
thatj.1” She also testified that appellant and their family believe in the Santisima Muerte, which
she described as an image or statue. She said she is a Catholic and she practices “Santisima
Muerte as a part of Iherl Catholic religion.” She said she was not aware of any violent practices
10
or sacrifices attached to that practice. ( )n crossexaminat ion, she testified I hat “Santa Muerte’’
means “the ho] y dead” or “the Saint of Death”
After hearine all the evidence, the jury rejected appellant’s claim of sudden passion and
sentenced him to ide imprisonment.
EVIDENCE 01’ SuDDEN PSSI0N
In his lirst issue, appel hint argues that the evidence is insufficient to support the jury’s
rejection of his claim of sudden passion. The State responds that the evidence was conflicting,
the jury resolved the conflicts against appellant, and the jury’s resolution of the issue is not so
against the great weight and preponderance of the evidence as to be manifestly unjust.
Standard of Review
When we review the sufficiency of the evidence to support the jury’s rejection of an issue
on which the defendant has the burden of prooi by a prepoiderance of the evidence, we apply the
factual sufficiency standard of review announced in Meraz ‘. State. 785 S.W.2d 146, 154—55
(Tex. Crim, App. 1990). See Brooks y.State. 323 S.W.3d 893. 924—26 (Tex. Crim. App. 2010)
(plurality op.) (Cochran, J., concurring): Seghelineble i. State, No, 05-11 -00300-CR, 2012 WL
5333410, at *2_3 (Tex. App.—Dallas Oct. 30. 2012. no pet. h.): Naasc v. State, 974 S.W.2d 418,
421 (Tex. App.—Dallas 1998. pet. rcf’d). We consider all the evidence in a neutral light and
determine whether the judgment is so against the great weight and preponderance of the evidence
as to be manifestly unjust. Mera, 785 S.W.2d at 155: Se’hehnehle. 2012 WL 5333410, at *3
We defer to the fact-finder’s resolution of conflicts in the evidence and determination of the
credibility of the witnesses and weight of the evidence unless the record clearly reveals a
different result is appropriate. Seghelmeble, 2012 WL 5333410, at *3 (citing Marshall v. State,
210 S.W.3d 618. 625 (Tex. Crim. App. 2006)).
11
Applicable Law
At the punishment. phase of a murder trial, a defendant may present evidence that he
caused the death of the victim under the immediate iniluence of sudden paion arising from an
adequate cause. Trx. PENAL. (onE ANN. 19.02(d) (West 2011 ). The burden is on the defendant
to prove the claim by a preponderance of the evidence. Id. If the jury finds in hivor of the
defendant on the claim, the punishment range is reduced to that ot a second-degree felony. Id.
“Sudden passion” means “passion directly caused by and arising out of provocation by
the individual killed or another acting with the person killed which passion arises at the time of
the offense and is not solely the result of former provocation.” Id. § 19.02(a)(2). “Adequate
cause” means “cause that would commonly produce a degree of anger. rage, resentment, or terror
in a person of ordinary temper. sufficient to render the mind incapable of cool reflection.” hi.
§ I 9.02(a)( 1). Earlier provocation alone is not sufficient. Merchant v. State, 810 S.W.2d 305, 3 10
(Tex. App.—Dallas 1991, pet. reid). The appellant must show that he “acted in the throes of
actual. suhective passiOn. 14. “I Al hare claim of ‘fear’ does not show ‘sudden passion arising
Irom an adequate cause.’” Id. (quoting Daniels r. State, 645 S.W.2d 459. 460 (Tex. Crim. App.
1983)).
Analysis
Appellant argues that Javier’s actions made him incapable of cool reflection. He argues
that Javier was the aggressor and that he was just reacting to Javier’s aggression. And he
contends that Javier’s state of mind was questionable because he had been using drugs. He also
points out that Javier, who was “much larger than” him, had knocked him to the ground and
continued to attack even though appellant had a gun. He argues that “a fist fight, which Javier
suggested, quickly turned into a fight to the death.” And he argues that when all the facts are
12
considered, “it is clear that Ihel shot Javier in the heat of sudden passion provoked by adequate
cause.”
Ihe evidence showed that appellant conironted Javier in the car, threatened to kill Javier,
went to the basketball court to fight Javier, shot Javier nine times, and beat Javier after shooting
him. Appellant testified that lie was “pretty mad’’ at Javier. Afterwards. he lied about shooting
Javier and lied to avoid apprehension. The jury weighed the conflicting evidence, determined the
credibility of the witnesses, and resolved the conflicts against appellant. Considering all the
evidence, we cannot say that the jury’s rejection of appellant’s claim of sudden passion is so
against the great weight and preponderance of the evidence as to be manifestly unlust. We
resolve issue one against appellant.
,JURY ARGiMENT
In issue two, appellant argues that the trial court abused its discretion by refusing to
instruct the jury to disregard the State’s improper jury argument. The State argues that appellant
did not object at trial on the ground that he raises on appeal and. consequently, did not preserve
this issue for review. It also argues that even if the closing argument was improper and the trial
court erred by refusing to instruct the jury to disregard the argument, appellant has not shown the
error was harmful. We agree any en-or was harmless.
Standard of Review
We review a trial court’s ruling on an objection to improper jury argument for an abuse
of discretion. Lemon i’. State, 298 S.W.3d 705. 707 (Tex. App.—San Antonio 2009, pet. rcf’d).
Applicable Law
Proper jury argument generally must he a summary of the evidence, reasonable
deductions from the evidence, a response to the defendant’s argument, a plea for law
13
enforcement, or invited argument. See We/’rook e. State. 29 S.W.3d 103, 115 (Tex, (‘rim. App.
20(10). A reterencc to lacts not supported by the record is improper argument. Al/ridge t. Stole.
762 S W 2d 146, 155 (1ev (‘rim App 1988) An improper comment made during fury
argument is a nonconstitutional error that must he disregarded if ii does not affect an appe11ants
substantial riithts. See Tux. R. App. P. 44,2(b); Martinet i. State. 17 S.W.3d 677, 692 (Tex. (‘rim,
App. 2000). We consider three factors in determining whether an improper jury argument
harmed an appellant: (1) the severity of the misconduct. (2) curative measures, and (3) the
certainly of conviction absent the misconduct, Martinez, 17 S.W.3d at 69293.
Analysis
During closing argument, defense counsel argued. among other things:
Methamphetamine, trazodone, phenytoin, codeine, morphine,
monoacetylmorphme, heroin. For God’s sakes. whomever, what?
Isnt one had enough? Can you imagine the combination? You
can’t imagine in your own mind what the combination would do to
you mentally and you are attacking somebody and you’re receiving
- remember, he said, I shot him three times and he kept coming.
Remember that’? That’s because that boy felt nothing. [ic’s crazy,
lie’s on drugs. and he’s moving lorward. and he ain’t stopping,
folks. Okay? That give you an adequate cause’? Well, sure it does.
[Javier] was the aggressor and he was going to do his damage
and he did. He was bulletproof, but it didn’t quite work.. So was . .
there an adequate cause? Of course. Was it sudden passion? Of
course it was.
The State responded:
Ladies and gentlemen, there’s no question that this wasn’t
. . .
sudden passion. . .And let’s be real clear about what sudden
.
passion is. On page 2, when you get this charge back, you’re going
to see it. And it says: A cause that would commonly produce a
degree of anger, rage, resentment, or terror in a person of ordinary
temper. Have you seen anything in this trial that makes you think
Christian Mireles is an individual of ordinary temper? And let’s be
clear what happened. What happened that night was this guy,
. . .
who likes to fight, who wants to be a thug, who wants to be out
there with his gun, getting into fights, making sure he’s not --
remember his words. disrespected. He got into a fight with Javier,
14
and Javier was whipping him up. . And Iiavierl put lappellanti
. .
on the eround and I Javier I put I appel hint I on the ground twice.
And then shat happened’? Christian Mireles. this Defendant,
walked over, took a gun, turned around, and shot the victim nine
times. There are 1’ in sony, ten there are ten casings. He shot
him ten times bullets into that I 8yearold’s body .Shot him ten
times. What did he do after that? He walked away, and because he
had lost a l’ighi. he went back and he started heating him with a
gun. You saw the pictures. I showed you here yesterday. we looked
at the pictures and the back of his head where a gun had been
hitting him in the back of the head.... That’s what this man did.
Sudden passion. Sudden passion is when someone goes home and
finds out their child is molested, and in that moment
Appellant objected that the prosecutor was “arguing outside the record for this case” and
the trial court sustained the objection Appellant asked the court to admonish the jury to
.
disregard the argument, hut the trial court overruled the request. stating. “Move along.”
Appellant argues on appeal that the argument misstated the law, referred to facts outside
the record, and directly impacted the jury’s perception of the burden he bore to prove sudden
passion. He argues that “the prosecutor’s remark implied that the only time sudden passion can
be found is ‘when someone goes home and finds out their child is molested.” Appellant
concedes that the courts charge to the jury “made no such limitation on the consideration of
sudden passion.” But he argues that the error was harmful because we cannot presume the jury
did not consider the remarks in rejecting his claim of sudden passion.
Because appellant objected below only on the ground that the argument referred to facts
outside the record, we limit our analysis to that ground. See T[x. R. App. P. 33.1. The State’s
attempt to give an example of acting tinder the immediate influence of sudden passe ion referred to
facts outside the record for which there was no curative instruction. However, we conclude that
the State’s argument did not cause appellant severe prejudice. The argument was made only
once, the State referred to the court’s charge in its argument, and the court’s charge did not place
a limitation on the claim of sudden passion. Additionally, the evidence was sufficient to support
15
the jury’s rejection ol appellant s claim ol sudden passion. We conclude that even if the trial
court erred b refusing ti) give a curatIve instruction, the error was harmless. We resolve issue
two against appellant.
EXTRA”ouS OFFIssE EvIDEM:
Appellant argues issues three and Ibur together. In those issues, he argues that the trial
court abused its discretion by not declaring a mistrial and giving curative instructions when the
State presented evidence that he worships Santisima Muerte, or Santa Muerte, and that followers
of Santisima commit violent acts. The State argues that a mistrial was not required because the
trial court instructed the jury to disregard the evidence, and the trial courf s refusal to give a
curative instruction after some of the testimony was harmless error.
Standard of Review
We review a trial court’s denial of a motion for mistrial and refusal to give a curative
instruction for an abuse of discretion. Hawkins v. State, 135 S.W.3e1 72. 76—77 (Te. Crirn. App.
2004) (mistrial): Ladd i’State 3 S.W.3d 547. 567 (Tex. Crim. App. 1999) (mistrial): Berrera r.
State, 291 S.W.3d 515, 518 (Tex. App.—Amarillo 2009, no pet.) (curative instruction). A
mistrial is appropriate when error “is so prejudicial that expenditure of further time and expense
would be wasteful and futile.” Hawkins, 135 S.W.3d at 77 (quoting Ladd, 3 S.W.3d at 567). “In
effect, the trial court conducts an appellate function: determining whether improper conduct is so
harmful that the case must be redone.” Id.
Applicable Law
Article 37.07, section 3(a)(1) “governs the admissibility of evidence during the
punishment stage of a non-capital criminal trial.” McGee v. State. 233 S.W.3d 315, 318 (Tex.
Crim. App. 2007). That statute provides that evidence may he offered by the state and the
16
deleiid alit as Lu any matter the coilil (teems relevant 10 Sentellcifl!. il1cltldifl! . . . e’ idence ol an
extraneous crime or had act.’” Id. quoting in part ‘Fix. (‘our (‘JUM. Piuic. art. 37.07. 3a) I)
(West 2006)). “Evidence is relevant to sentencing,’ within the meaning of the statute, if the
evidence is helpful to the jury in determining the appropriate sentence for a particular defendant
in a particular case.’’ Id. (quoting Rodriguez r, State, 203 S.W.3d 837, 849 (Tex. (‘rim, App.
2006).
Analysis
Appellant generally complains that after the trial court sustained his objections to several
questions about the Santisinia. the prosecutor refused to “move on to another line of inquiry”
despite having been told to do so several times by the trial court. After Agent Pena had testified
generally about the Santisima, the following exchanges occurred:
Q. Do I followers of Santisimaj also sometimes commit violent
acts?
A. I have heard of instances. There’s one in Houston. for instance.
the Reza (phonetic) trial in Houston. federal case ——
THE REPORTER: The Reza?
TIlE WITNESS: Reza.
IDEFENSE COUNSELI: I’m going to object to --
THE COURT: I can’t hear you.
DEFENSE COUNSELj: I’m going to object to that as being
extraneous and collateral. And it has nothing to do with this case
whatsoever.
THE COURT: I can’t hear you. Mr. IDefense Counsell.
IDEFENSE COUNSELI: I’m going to object to that as being
extraneous collateral offense he’s testified to and it’s biased and
prejudiced and has nothing to do with this ease whatsoever.
THE COURT: Sustained.
17
[DEFENSE COUNSELj: Please admonish the jury to disregard
what he just said.
THE COURT: The jury will disregard it.
I DEFENSE COUNSELj: We woukl ask for a mistrial.
FHE COt JRT: Denied. Let’s move on. please.
Appellant argues that Agent Pena did not refer to any act actually committed or
perlormed by Appellant I and I the evidence of other crinies associated with other individuals who
claimed to follow Sam isima Muerte was not probative as to the appmpriate punishment
Appellant should receive for shooting Javier,” As appellant concedes. Agent Pena did not
attribute any violent acts to appellant, and appellant established on crossexarnination that the
witness did not know anything about appellant or whether appellant was a violent person.
Additionally, the court sustained the objection before the witness gave any details about the
‘Reza” case. We presume the jury heeded the judge’s curative instructions. See Waldo v. State,
746 S.W.2d 750, 75253 (Tex. Crim. App. 1988). We conclude that the trial court did not abuse
its discretion by denying appellant’s motion for mistrial. We resolve this subpart of issue three
against appellant.
Appellant also objected to the following exchange:
Q. (BY jTHE STATE[) Agent Pena, can you tell us, why is this
religion-- you said that you’ve a lot of people that you’ve
--
spoken to in these drug cartels and these gangs worship the
Santisirna. Why is it popular among that culture’?
[DEFENSE COUNSELI: Fm going to object to his testimony
about any other gangs as unrelated to this case and extraneous --
ITHE STATEI: I’ll rephrase the question.
THE COURT: Thank you.
[DEFENSE COUNSELI: Excuse me. May I make my objection’?
Prejudicial and harmful.
18
TI IF COIJRT: All right. I t’ move on.
Q. (BY I IIJE STATE!) Why is the Santisima popular among that
cti It ure.
A. i3ecuise there’s different stales, and a lot of times usually it’s
the lower class that that worship because br instance, they
feel you have the Virgin Mary in the Catholic church and some
people in Mexico feel that the poor are more represented by Santa
Muerte.
During the middle of appellant’s objection, the State said it would rephrase the question.
Appellant continued to make his objection. but he did not get a ruling. When the State asked the
question again, appellant did not object. Consequently, appellant has not preserved this subpart
of issue three for our review. See TEX. R. Apr. P. 33.1.
The State’s examination of Agent Pena continued:
Q. And why you said that you teach. When you teach classes to
--
other law enforcement agents. you include teaching on the
Santisima. Why do you feel that it’s important to teach other law
enborcement agencies about this’?
A. Well, because as I teach mostly have to (10 with mind—set. The
--
mind-set here, mind-set there is way different. Right now a lot of
the criminal element coming into the United States from Mexico
have different mind-set. And what I mean by that is some
beheading --
(DEFENSE COUNSELJ: Who comes in from Mexico?
THE COURT: Sustained.
IDEFENSE COUNSELI: Would you please--
THE COURT: Sustained.
IDEFENSE COUNSELJ: -- admonish the jury to disregard that
remark’?
THE COURT: Disregard, and let’s move on.
IDEFENSE COUNSEL!: Ask for a mistrial.
THE COURT: Denied.
19
The trial uirl aaiii sustained appellant s object ion anti instructed the jflrV to disreard
the “remark.’ and appellant has not rebutted the presumption that the jury disregarded the
remark .5cc Waldo, 746 S.W.2d at 75253. We resolve this subpart of issue three against
appellant.
Agent Pena continued to testify as follows:
Q. (BY I TI IL STATE I) Agent Pena. do the people who worship
the Santisima have you seen tattoos on their bodies depicting
that?
A. Yes.
IDEFENSE COUNSELj: I’m going to object. What people
worship other than this Defendant being extraneous and collateral,
harmful. prejudicial ——
THE COURT: Sustained.
IDEFENSE COUNSELI: And please admonish the jury to
disregard her answer her question.
--
THE COURT: All right. Your objection is sustained. Let’s move
on to something specific to this case.
The trial court sustained the objection to the question. hut did not give a curative
instruction. Instead, the court instructed the State to move on to something specific to this case.”
The State then showed Agent Pcna pictures of appellant’s tattoos and asked whether appellant’s
tattoos were typical of those of followers of Santisima or Santa Muerte. Appellant did not object
to the question or Agent Pena’s answer. Evidence of appellant’s tattoos and worship of Santisirna
Muerte also came in earlier without objection through the testimony of appellant’s girlfriend.
Any effect that the question and answer about tattoos generally may have had on the jury was
ameliorated by the testimony about appellant’s tattoos that came in without objection.
Additionally, a person’s affiliation with a certain religion or cult may be relevant to punishment.
See Doris v.State. 329 S.W.3d 798. 805—06 (Tex. Crim. App. 2010). And “[al defendant’s
20
choice of tattoos. . . can reflect his character andlor demonstrate a motive for his crime” and, as
a result, also be relevant to punishment. See Conner i State. 67 S.W.3d 192, 20! (Tex. Crirn.
App. 2001). We conclude that the trial court’s failure to give a curative instruction was harmless
and resolve issue four against appellant.
MoTIoN FOR CovrINuAria
In issue five, appellant argues that the trial court abused its discretion and violated his due
process rights by not recessing or continuing the trial after appellant sustained visible injuries in
a jailhouse fight. He argues that his due process rights were violated when “the trial court forced
Ihitni to make a Hobson’s choice: absent himself from the courtroom voluntarily or sit at counsel
table in full view of the jury.” The State argues that appellant did not preserve this issue for
review. We agree with the State.
A motion for continuance must be in writing and sworn to by someone with personal
knowledge of the facts. Ta CODE ClaM. PRoc. arts. 29.03, .08 (West 2006). An oral, unsworn
motion for continuance does not preserve the issue for appellate review. Blackshear v. State, No.
P1>0889-lI, 2012 WL 6599921, at *2 (Ta. Crim. App. Dec. 19,2012); Anderson t’. State, 301
S.W.3d 276, 278-79 (Tex. Crim. App. 2009). The court of criminal appeals has refused to
recognize a due process exception to this nile of procedural default. Blacbhear, 2012 WL
6599921, at *2; Anderson, 301 S.W.3d at 278—81. We resolve issue five against appellant.
7:
;4;4t&’ i7tii
ELlZABEH LANG-MIERS